Com., to Use v. Fid. Dep. Co.

Argued March 15, 1938. This appeal is by the plaintiff from an order refusing to enter judgment for want of a sufficient affidavit of defense for more than $855.29, with interest from June 30, 1931. The action is against the surety on a guardian's bond. It is concerned with the receipt by the guardian of money from the sale of real estate in Massachusetts which belonged to the ward. The proceedings relative to the sale of the land in Massachusetts are not made a part of the plaintiff's statement. The liability of the surety may be affected by the proceedings and order of the court in Massachusetts authorizing the sale and the receipt of the money by the guardian.

After reading the pleadings and considering the arguments of counsel we cannot say that it is "clear and free from doubt" that the court erred in refusing judgment for the balance of plaintiff's claim. See Kaster v. Penna. Fuel Supply Co., 300 Pa. 52,150 A. 153. On the contrary we are of opinion that the liability of the defendant may be affected by the record of the court proceedings in Massachusetts, and hence the case is not one for summary judgment but calls for a full development of the facts on the trial.

Following the usual course pursued in such cases we shall not discuss the applicable rules of law until the facts have been developed on the trial.

Order affirmed.